Nonconforming Use Or Nonconforming Structure: That Is The Question

Uses and structures that do not conform to a zoning ordinance are deemed "nonconforming uses" and "nonconforming structures," respectively. Uses relate to the utilization of land (e.g. type of activity/operation), whereas structures are dimensional in nature (e.g. square footage, height, setbacks, etc.). But, what is the proper classification of a nonconforming structure that contains a conforming use? And, how does the classification affect proposed improvements?

As explained herein, the proper classification of a nonconforming structure that contains a conforming use is just that – a nonconforming structure with a conforming use. Any relief requested should be in the form of an area variance to address the dimensional nonconformity, and be subject to less onerous area variance "balancing test." The more onerous "unnecessary hardship test" for a use variance should not apply. Additionally, the public policy of the reasonable restriction and eventual elimination of nonconforming uses should not apply.

Nonconformities and Relief

Nonconforming uses or nonconforming structures often preexist ordinances (or ordinance amendments), and generally may remain unchanged as preexisting nonconforming. However, ordinances typically prohibit expansions of, or alterations to, preexisting nonconforming uses/structures. Ordinances also typically provide that if a preexisting nonconforming use ceases for a period of time, then the preexisting nonconforming use status is lost or abandoned, and the property must comply with applicable use regulations.

To expand or alter a nonconformity, one usually must obtain relief from an ordinance in the form of a variance. Mirror statutes in the Town and Village law (and a nearly identical statute in the General City Law) provide for two types of variances: (i) a "use variance" authorizing the use of land for a purpose that is prohibited, and (ii) an "area variance" authorizing dimensions that are prohibited.

The classification is significant because nonconforming uses and nonconforming structures receive extraordinarily different treatment. Nonconforming uses are inconsistent with established land-use patterns prescribed by ordinance and, because of this, public policy favors their reasonable restriction and eventual elimination. Thus, the use variance test is much harder to satisfy than the area variance test. If the relief sought is classified as "use" – as opposed to "area" – then the applicant has a much more difficult burden.

Classification Illustrations

Professor Rice's commentaries to the statutes note: "[I]n few significant areas, some doubt had existed as to whether a variance is in the nature of an area or a use variance. Because of the significantly different burdens of proof, the conclusion obviously may have a substantial impact on the outcome of an application."

There is a dearth of authority on the precise issue of nonconforming structures with conforming uses, but there are some instructive cases (*Note: the variance statutes became effective in 1992, and some of the cases discussed herein predate the statutes).

In Dawson v Zoning Bd. of Appeals of Town of Southold (12 AD3d 444 [2d Dept 2004]), landowners challenged the zoning board's determination to grant a conditional area variance, rather than a certificate of occupancy, for a cottage as an accessory use to a primary residential building. The zoning board determined that the cottage constituted a nonconforming use and the use was abandoned, so a certificate of occupancy could not issue. The Court held that the cottage was a residential dwelling on the same lot as the primary residential dwelling (presumably zoned residential) and constituted a nonconforming building, rather than a nonconforming use. The Court ordered the zoning board to direct the building department to issue a certificate of occupancy for the cottage.

In Amzalak v Incorporated Vil. of Valley Stream (220 NYS2d 113 [Sup Ct, Nassau County 1961]), the Court granted summary judgment to the landowner and declared that the ordinance was ineffective to prevent the use of a structure as a one-family dwelling. The subject property was situated in a residential zone and improved with a single-family residence and a detached structure comprising a three-car garage with an apartment. The residence and garage/apartment preexisted the ordinance and did not conform to certain dimensional/area restrictions.

The village argued that the garage/apartment – incidental to the residence – was a nonconforming use, and that use was abandoned. The Court rejected this argument and held that the garage/apartment was a permitted residential use: "It is unquestionably true that the structure as such does not comply with the area and rear yard requirements...However, this renders it only a 'non-complying' or a non-conforming building[,] but not a non-conforming use." The Court also held that the ordinance did not terminate the right to use the structure as an apartment (i.e. a conforming residential use).

In Welch v Law (121 AD3d 808 [3d Dept 1986]), a neighbor challenged the issuance of a variance to a landowner for a side yard setback lesser than required by the ordinance. The property was improved with a one-family dwelling and situated within the town's "residential-commercial medium density" district. The setback nonconformity preexisted the ordinance, but the landowner made dwelling improvements to reduce the setback even more. Notably, the use remained a permitted residential use.

The nature of the nonconformity sounding in area/dimensions rendered the dwelling a nonconforming structure – requiring an area variance, rather than a use variance. The Court discussed the issuance of "area variance," the "area variance" guidelines, and deference to the issuance of "area variance," and upheld the "area variance." The Court, however, appears to have inadvertently stated that the dwelling "consitut[e]d a preexisting nonconforming use."

Conclusion

Let not the distinction be the undiscovered country, from whose bourn no traveler returns. The ordinance of each municipality is different and may provide specific treatment of nonconformities. These zoning terms and concepts should be used with precision to avoid confusion or doubt about the proper classification and applicable legal standards. Understanding the classification nuance and the applicable ordinance is critical to how a practitioner should approach and present an application (and address any subsequent litigation challenging a determination of that application).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.